Two messages came from the White House today intended to assuage concerns about the president’s authority to kill Americans with drones on U.S. soil — which, the attorney general wrote this week, is hypothetical but technically sanctioned.
Following Rand Paul’s 13-hour filibuster of John Brennan’s CIA directorship confirmation over this issue, Eric Holder followed up with another letter to Paul. Only two sentences long, the missive read, “It has come to my attention that you have asked an additional question: ‘Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer that question is no.”
Paul has said he is “quite happy” with this message and ended his objection to moving ahead with the nomination of John Brennan — who was confirmed by a Senate vote as CIA director Thursday.
But no one ever thought the president had the authority to randomly strike down any and all Americans with roving drones in U.S. skies. We did all laugh when Paul asked if a drone could target Jane Fonda. The question remains, as ever, what gets to count as “engaged in combat” and an “extraordinary circumstance” such that the executive could choose to deploy a lethal military strike? The executive branch makes these decisions and they remain shielded from public view or challenge.
We have already seen the president embrace a dangerously expanded definition of “combatant” when it comes to drone strikes abroad, in effect counting all military-age males in a strike zone as combatants. What would “engaged in combat” on U.S. soil cover? Holder’s brief letter does not answer.
Meanwhile, White House spokesman Jay Carney Thursday assured reporters that President Obama “has not and would not” use a weaponized drone against Americans on U.S. soil. But again, the primary concern is not what Obama says he would do at this point. It is whether the administration has in place a legal framework that a priori justifies the adoption of total sovereign power by the president as and when the executive deems it necessary — despite Carney’s comments and Holder’s clarification, every indication suggests that such a structure is in place. Checks and balances on the executive should not reside on what the current president would or would not opt to do.